Obama poster: AP, IP, and FU

The late night news had a hilariously ironic story about the money artist Shepard Fairey made off of the most famous poster for Sen. Obama’s. The Associated Press is suing the artist asking for a piece of the action.

As the AP reports on AP’s dispute:

"The Associated Press has determined that the photograph used in the poster is an AP photo and that its use required permission," the AP's director of media relations, Paul Colford, said in a statement. "AP safeguards its assets and looks at these events on a case-by-case basis. We have reached out to Mr. Fairey's attorney and are in discussions. We hope for an amicable solution."

"We believe fair use protects Shepard's right to do what he did here," says Fairey's lawyer, Anthony Falzone, executive director of the Fair Use Project at Stanford University and a lecturer at the Stanford Law School. "It wouldn't be appropriate to comment beyond that at this time because we are in discussions about this with the AP."

This story works on so many levels. There are no clean hands, and is much like Captain Renault saying he is “shocked, shocked” to discover gambling in Morocco.

AP is the same AP that has spent the last five years taking text and image content from its dying newspaper members — who spend most of the money in the US to gather it — and then providing it to the same companies (i.e. Google and Yahoo) that are putting newspapers out of business.

Meanwhile, in an interview with the artist, Fairey used laziness (rather than scholarly or artistic license) for using the photo without rights.

…the idea of hijacking things was almost part of the concept rather than it being looked at as appropriation or plagiarism. It's like, "F*** you if you don't like that I'm using this, 'cause I'm using it anyway. I have no money and no power so you can't get anything from me anyway." …

Aspects of that have remained with me. When I did my Obama image, I just found my image from an AP news photo on Google and illustrated from that. There was no time to get Obama to do a sitting or license a photograph. I felt I needed to get the image done and out there right away. So part of that is still with me.

Finally, this seems to be encouraging rather than discouraging even sillier IP ideas. According to the LA Times, the administration is trying to control all rights to the president's image

The Ticket also reported the other day that White House lawyers are exploring ways of protecting the copyright of the new president's image like this. And we said good luck with that around the Obama-loving world.

This is coming from the administration that talked about openness and reportedly is interested in an open source mandate.

Besides the PR problem of such a ham-handed effort, there is also the issue of legal feasibility. While I defer to real lawyers, I suspect this image control strategy is doomed to fail: it was tried by our Governator here and only achieved minor success.

Photo credit: AP photo and Fairley poster used under a claim of fair use; the latter was redistributed by AP without prior license (presumably under a claim of fair use).